Seal motion, prosecutors ask

City prosecutors are asking a state judge to keep sealed a request to dismiss a murder charge against a State Department special agent and its supporting exhibits, which include surveillance videotapes of the fatal shooting at a McDonald’s Waikiki restaurant last year.

The defense for special agent Christopher Deedy this week filed the dismissal motion and supporting exhibits that include McDonald’s videotapes at the Kuhio Avenue restaurant.

The dismissal request is based on the contention that Deedy was performing his duties as a federal law enforcement officer and is immune from prosecution under state law.

City Deputy Prosecutor Janice Futa said the defense documents and exhibits include arguments related to the merits of the case against Deedy but not the dismissal motion.

She said publicity about the request and supporting exhibits might taint potential jurors and harm the trial proceedings.

Deedy’s lawyer, Brook Hart, declined to comment, saying he and the prosecutors were directed by Circuit Judge Karen Ahn to try to reach an agreement about what might be kept private.

Honolulu attorney Jeffrey Portnoy, who will ask to participate in the case for the Hono­lulu Star-Advertiser to argue against the prosecution’s request, said keeping information confidential is "woefully inadequate" for a case of such local and national importance.

Ahn is scheduled to hear the prosecution’s request to keep information sealed on Thursday. The hearing on the dismissal request is scheduled for July.

Deedy, 28, is scheduled to stand trial in September on the charge of murdering Kollin Elderts, 23, on Nov. 5. The special agent was here to provide security for leaders at the Asia-Pacific Economic Cooperation conference.

The McDonald’s surveillance video is considered critical in the case.

Police said Deedy shot Elderts in the chest following an argument. Deedy’s defense is that he was acting to defend himself and a friend when Elderts was shot.

In her motion, Futa said the Hawaii Rules of Penal Procedure prohibit a lawyer from making an "extrajudicial statement" that will harm a court proceeding. An extrajudicial statement is a statement made outside of court.

She said the defense knows there will be news coverage of its motion.

Futa said, "This attempt to use the judicial process to air their arguments on the merits of the case in the court of public opinion amounts to a violation of (the rule)."

She also said another exhibit contains the defense’s "personal characterization and interpretation" of numerous photos from the surveillance video.

Portnoy said he’s never heard of the legal argument that court documents that include "extrajudicial" statements should be kept confidential.

"I’ve never seen (a sealing request) so devoid of substance," he said.

Even if the defense material generates publicity, there are "well-recognized alternatives to deal with potential jury bias that are not unconstitutional violations of freedom of access," he said.

Those alternatives include delaying the trial and allowing the attorneys to extensively question potential jurors, Portnoy has said in previous cases.

Dave Koga, spokes­man for the city prosecutor’s office, said prosecutors had no comment beyond their sealing request.